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Jun 05 2015

At the collision between reality and policy

Category: The Law Author:

The recently-elected Conservative government has been seeing some well-deserved criticism of its naïve plan to do an end-run around the ‘legal highs’ arms race by simply banning the lot of them. Their new legislation will:

Make it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances; that is, any substance intended for human consumption that is capable of producing a psychoactive effect.

There are several good reasons why this simplistic strategy falls firmly in the ‘if it was that easy we’d have already done it’ category.

Firstly, there is a not insignificant and growing list of products that may be unintentionally banned by the law, including but not limited to flowers, deodorants, and glue. The legislation already exempts commonly-used psychoactive such as tobacco, alcohol, and caffeine, and it seems probable that this whitelist will have to be expanded to cover many other unexpected items. But once you start whitelisting anything psychoactive that shouldn’t be banned, you quickly find that instead of constantly maintaining and updating a blacklist of forbidden drugs, you’re instead maintaining and updating a whitelist of permitted consumer products. This seems like a pyrrhic victory at best, and a chilling reversal of the ‘Everything not forbidden is allowed‘ principle of law at worst.

Secondly, there is no simple or objective measure of the degree of psychoactivity of a particular substance. As pointed out by the Guardian, almost any item or experience is capable of producing an altered state of consciousness or mood. You can take this line of reasoning to its logical conclusion and argue that perception by definition requires the alteration of your mental state in order to see or hear, and it’s tough to mark out a point between that and a full LSD trip that everybody can agree is weird enough to count as ‘properly’ psychoactive.

Ultimately, the problem is that banning psychoactive substances on the basis of their psychoactive nature is a totally illogical pursuit, and this legislation makes that fact crystal clear. One can almost imagine the frustrated Conservative response to the Independent article; “Well, obviously we don’t intend to ban those items! Just the drugs — all the bad psychoactives!” What they seek to eliminate, essentially, is not a class of product but a class of mental state, and this approach forces them to make a clear, legal distinction between acceptable states and unacceptable mental states.

The silver lining, perhaps, is that with legal highs no longer available, people will naturally gravitate back to the tried-and-tested drugs legal highs are designed to imitate — which have already been shown to be less harmful that the legal highs of alcohol and tobacco in almost every instance. Perhaps Cameron should have stuck to his original plan and saved himself a lot of bother.

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